Brief of Professors Gregory Sisk and James Pfander as Amici Curiae in Support of Respondent, Simmons v. Himmelreich, No. 15-109 (Supreme Court)

Brief, Supreme Court of the United States, 2015 Term

U of St. Thomas (Minnesota) Legal Studies Research Paper No. 16-07

41 Pages Posted: 5 Feb 2016

Date Written: February 4, 2016

Abstract

In this brief in support of respondent, we argue against the application of the so-called judgment bar to preclude the assertion of claims under Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics (1971). The judgment bar, 28 U.S.C. § 2676 , was adopted as part of the Federal Tort Claims Act of 1946 to address an asymmetry in non-mutual issue preclusion that had developed in the law governing respondeat superior liability. While an unsuccessful negligence claim against an employee would block a subsequent vicarious liability suit against the employer, many states and the Restatement of Judgments (1942) held that tort litigation against the employer (or Government) would not similarly preclude a subsequent tort action against the employee. The FTCA judgment bar ensured that a judgment on the merits would operate as a preclusion bar in both directions, but it came into play only where the initial FTCA claim against the Government was based on a theory of vicarious liability and thus presented the identical theory of tort liability that was later asserted in litigation against the employee.

Despite its narrow text and purpose, the FTCA judgment bar has been mistakenly applied to preclude a wide swath of constitutional tort claims under Bivens. Lower federal courts have applied the bar as a sweeping form of non-mutual claim preclusion, even where the FTCA judgment was reached on non-merits grounds that do not negate the employee’s liability under Bivens. And other courts have sensibly tried to avoid an unduly broad application of the judgment bar, but have done so by mistakenly characterizing a dismissal of an action against the Government by reason of a statutory exception to the FTCA as jurisdictional and thus having no preclusive effect.

The Simmons v. Himmelreich case provides the Supreme Court with an opportunity to correct these misinterpretations. We argue that the judgment bar cannot preempt constitutional claims brought under the authority of Bivens. The Government itself bears no vicarious or respondeat superior liability for the constitutional torts of its employees; hence, common law tort claims against the Government under the FTCA lack, by definition, the theoretical identity necessary to bar constitutional tort claims against the employee. Put simply, the FTCA, and its judgment bar, was not designed to coordinate the liability of the Government under the FTCA and the liability of Government employees under Bivens.

Keywords: Bivens, Federal Tort Claims Act, claim preclusion, issue preclusion, res judicata, collateral estoppel, Westfall Act, litigation with the federal government, constitutional torts, sovereign immunity, federal courts, federal jurisdiction

Suggested Citation

Sisk, Gregory C. and Pfander, James E., Brief of Professors Gregory Sisk and James Pfander as Amici Curiae in Support of Respondent, Simmons v. Himmelreich, No. 15-109 (Supreme Court) (February 4, 2016). Brief, Supreme Court of the United States, 2015 Term, U of St. Thomas (Minnesota) Legal Studies Research Paper No. 16-07, Available at SSRN: https://ssrn.com/abstract=2728088

Gregory C. Sisk (Contact Author)

University of St. Thomas School of Law (Minnesota) ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4892 (Phone)

James E. Pfander

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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